The Constitutional Crises of 2006

In 2005's waning days, Washington, D.C., Beltway developments pointed to 2006 as a pivotal year for American democracy.

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The most far-reaching of these was George W. Bush's aggressive advocacy of his program of secret domestic spying by the National Security Agency (NSA). The only way the program can't be construed as a clear violation of the Foreign Intelligence Surveillance Act (FISA) is if the president has the authority to override any law. And this is precisely Bush's claim.

Given that Bush and his cabal have predicted that their War on Terror may last up to 100 years, the president is actually claiming that the rule of law need not apply for several generations. Bush is proclaiming the right as "wartime president" to do anything he likes. Anything. Hey, why not disband Congress? (Hmmm.) Why not suspend the 2008 election?

This is deeply alarming.

A Dec. 23 Boston Globe story, essentially confirmed the next day in The New York Times, suggested that the NSA surveillance has operated by creating search terms and using computers to monitor not only suspected Al Qaeda operatives' but all Americans' international calls, e-mails, and faxes. If particular terms are a match, the communications are automatically culled and referred for follow-up.

This would certainly explain why Bush didn't use FISA courts to obtain warrants—no court would countenance surveillance upon countless millions of Americans. Even if the monitoring is automated, humans still must select search terms or target individuals. Done in secret, with accountability only to a highly politicized White House, there is absolutely nothing to prevent Bush and his cronies from using the NSA to illegally spy on anyone of their choosing.

The NSA scandal is not the only crisis looming. On Monday, Jan. 9, the Senate begins confirmation hearings on the Supreme Court nomination of Samuel Alito, a radical conservative who, in a just-exhumed 1984 Reagan administration memo, advocated exactly the sort of warrantless domestic spying now being conducted by Bush. In his federal bench years, Alito has been a rabid advocate of expanded executive branch power and an emasculated Congress. Adding Alito to the Supreme Court would doom Roe v. Wade, but beyond that, it portends a massive expansion of corporate and state power at the expense of ordinary Americans.

Also in January, Congress must finally address the Patriot Act. For the last few months, news has been overflowing with the Bush administration's large and small abuses of power: NSA spying, torture, CIA rendition, a gulag of secret prisons, U.S. citizen and "enemy combatant" Jose Padilla, warrantless use of nuclear radiation monitors outside Muslim-associated sites in Seattle and five other cities, a Swedish report that there are now 80,000 names on the secret federal air travel "watchlist," the gutting of habeas corpus for secret overseas prisoners. . . . The list is seemingly endless and begs the question of what further abuses of government power remain hidden from the public eye. Congress must decide whether any of it matters.

The 2006 constitutional crises are not simply confined to the executive branch. Lobbyist Jack Abramoff's plea agreement this week will assure his cooperation in the corruption investigation of members of Congress and their aides. More than four dozen members of Congress accepted large donations, gifts, or travel from Abramoff at the time they took legislative action favorable to him or his clients. That's only one lobbyist out of tens of thousands within the Beltway. The Abramoff scandals threaten to unveil the ugly but usually "legal" ways in which bipartisan Capitol Hill bribery works. It's democracy for the highest bidder, a profound crisis for democracy, and it comes at exactly the time that a Republican-dominated Congress and a Republican-stacked Supreme Court are the only political institutions that can rein in the lawless excesses of the Bush administration.

The year 2006 brings many urgent problems: an illegal, immoral, and futile war, our criminal failure to act on global warming, the imminent death of a major American city and the fate of its refugees, a health care system spiraling out of control, and so on.

But these are symptoms. The underlying disease is the escalating inability of American democracy to respect the rights and needs of ordinary Americans, with a political process that cannot solve serious problems because it is wholly owned by enormous corporate and political interests. Power is concentrated in a handful of people who owe their power to those interests—plus, at the top, a lying, murderous president who claims the right to break any law.

The only real solution is a clean sweep. Congress must reject Alito, and if Congress is (in the words the Bush White House once reserved for the United Nations) "to remain relevant," it must impeach Bush and Dick Cheney. In both cases, citizen outrage will be needed to force a corrupt and reluctant Congress to act. And in November, regardless of party, we must replace corrupt lawmakers with candidates who are truly responsive and accountable to the ordinary people who elect them.

It's either that, or by 2007 we will be living in a de facto dictatorship. It's our choice.